Enhancing the Spectrum

Media Power, Democracy, and the Marketplace of Ideas

In their article, Professor Krotoszynski and Mr. Blaiklock assess diversity and broadcast media regulation in contemporary America. First, the authors consider the Federal Communications Commission's regulatory attempts to promote diversity in television and radio broadcasting. The authors discuss the Commission's difficulties in defining and characterizing "diversity" and further note some of the inconsistencies inherent in the Commission's dual emphasis on competition and diversity in broadcast programming, also mentioning the threat to democratic values posed by unduly concentrated media ownership. Next, the authors chronicle the burgeoning judicial hostility to race-conscious governmental policies and practices. They discuss the related shift from intermediate scrutiny to strict scrutiny in equal protection jurisprudence and the Commission's frantic efforts to provide justifications for its increasingly endangered race-based diversity regulations. The authors also examine the need for diversity in programming, both arguing that structural diversity among broadcast media outlets presents the best means of securing ideologically diverse programming and responding to potential objections to structural regulations aimed at securing such diversity. Finally, the authors elaborate on how such structural media regulations do not raise serious equal protection problems and conclude with a reminder that a healthy democracy depends upon a myriad of voices. * Associate Professor of Law, Washington and Lee University School of Law. ** Associate, Ice Miller. B.A., Hanover College; J.D., Indiana University School of Law-Indianapolis. The views expressed in this article are those of Mr. Blaiklock and not those of his employer.

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